in both; some actions in the folly and knavery of attornies, and some in the folly and knavery of the parties." My friend is not apt to deal in metaphysical abstraction; you know very well that he does not use words without application. We shall not attempt to prove his whole speech. You know with how little credit a long story is received from witnesses; but we shall prove the words here entered upon the record: "Mr. Peter Hodgson was the attorney for the plaintiff; he drew the promissory note; he fraudulently got Beaumont to pay 150l. to the plaintiff. This was the most profligate thing I ever knew done by a professional man." Then follows the particular expression which we have charged in the second count on the record: it concludes the remarks already stated to you. The sting is always in the tail. "Mr. Hodgson is a fraudulent and wicked attorney." Now, gentlemen, I ask you, if you were wrong in any action brought into this court, how would you like such abuse of the freedom of speech by a gentleman holding a high reputation at the bar? A humbler individual, if he had not the spirit and the honour to vindicate his fame from such an attack, would be ruined. My client has the spirit and honour to repel it. The defendant has joined the general issue; that is, the words are denied. I have a right to presume, indeed I have more than a presumption, that his instructions did not warrant the words, and Mr. Hodgson has taken care to ascertain the fact. In the hurry, agitation, and irritation of the bar, words may certainly be uttered that are not warranted; but a serious impression to the injury of character and professional career could never be allowed to be made with impunity. What was Mr. Hodgson to do? He called upon Mr. Scarlett to justify or to deny these words: he would do neither. Mr. Hodgson, therefore, found he must appeal to a jury. The words will be indisputably proved. Mr. Hodgson was distinctly predicated to be a fraudulent and wicked attorney. The only question then was, whether he was thus to be traduced with impunity. I mentioned that the plaintiff lives in a different county. It is generally a suspicious circumstance for a plaintiff to come to a jury of a different county, as if he could not trust a jury who knew his character. But in this case the action was brought here because the words charged had been uttered here; and it is rather advantageous to my learned friend, for if there is one place on this circuit in which he is better known than in another place, it is the county palatine of Lancaster. As I believe this will be the last time I can address you on the subject, I must say a word of damages. I distinctly disclaim for my client that damages are his object. He only wants the vindication of his injured character. You will take care that he sustain no loss by this vindication. I do not ask for angry and vindictive damages. I ask no more than justice to my client. Less than justice you will not give. Mr. Baron Wood.-Can you mention any action of the same kind, or upon what principle it can be maintained? Mr. Mr. Raine. I do not know that any action of the kind has ever been brought. Mr. Baron Wood.-It appears to me that an action cannot be maintained for words spoken in judicial proceedings. If a counsel misbehaves, or goes too far, the judge who presides corrects his misconduct; but if an action is once maintained, there is no end of it. Actions of this kind would perpetually occupy the court. If a counsel were to pause in his pleading, and to say such a man is a great rogue, that would be actionable. Mr. Raine. That is precisely our case. We say the libellous expressions were voluntarily and gratuitously used. Mr. Baron Wood.-No; whether a note was fraudulent or not, as I understand the record, for I know nothing of the nature of the first action. Mr. Richardson.-The privileges of Parliament have been alluded to. I don't apprehend that the question here has any resemblance to them.-(Mr. B. Wood. Why not?)-Well, be it that the utmost freedom of speech is allow ed; but to go out of the way to attack character-(Mr. B. Wood. No, it was not out of the way; the words might be too severe, but they were connected with the note. It would be a dangerous precedent to receive an action on such a ground.)—If a man's character is injured, if, for instance, a surgeon is injured and obstructed in his career, there must surely be some remedy. The presiding wisdom in our courts is no protection, when the injury is sustained, when the shaft strikes, and cannot VOL. LIX. be extracted by such protection. I, like all my brothers, am interested in the full freedom of the bar, but there must be a limit. The privilege of parliament is a peculiar species of right that cannot in its very nature be made actionable in courts of law. The plain question here is, if the counsel could with impunity go out of his way, and say, Mr. Hodgson "is a fraudulent and wicked attorney." Mr. Topping. Does your Lordship wish us to say any thing on the question? Mr. B. Wood.-Yes. Mr. Topping.- did expect to hear some observations by your Lordship on the novelty of this action. Its tendency and nature are important, not only to the bar but to the client. If such an action can be maintained, very different will be the situation of every client in a court of justice, when deprived of the free and vigorous exercise of his counsel, at full liberty to apply his talents, learning and industry to the cause in which he is engaged. The words in the record are only the opinion, the inference, the comment, which my honourable and learned friend felt at the time to be merited. The facts of the case warranted the comment. Mr. Raine very judiciously and very ably-I observe he shakes his head, but I will say— (Mr. Raine, I read every word,) -if Mr. Raine had not interrupted me, he would have heard me say, in terms no ways disrespectful to him, that he showed great prudence and discretion in not communicating the facts and circumstances of the case. The words were severe, because my hon. and learned friend felt severity N to to be warranted. They were the comments which the learning and ability of my friend suggested on the facts proved. "Some actions are founded in folly." That action was so, for it ended in a nonsuit. The whole passage was not respecting the character of Mr. Hodgson in general, but in this case. If the counsel are not allowed to comment on the facts proved, there is an end of the British bar's utility; its energies are paralyzed for ever without those fair and honourable exertions which are thus attempted to be suppressed, it will be neither creditable nor useful. The expressions used by my friend were called for and merited in my opinion. But it was necessary not only to prove that they were false, but malicious. Good God! will it be said that we feel any malice against a party against whom we exert ourselves at this bar? Will your lordship be the first judge to fetter the bar; and, if I may use a coarse and vulgar expression, to oblige every counsel to address a jury with a halter about his neck? The danger is palpable and plain. Your lordship will not allow in 1817 a principle to be established hitherto unknown to English law. Sergeant Hullock.-That this action is primæ impressionis is proof of the unanimous opinion of the whole profession against it. The words were used in the fair and legitimate exercise of his profession; they were too strong perhaps, but they were not actionable. If he had met a man in the street and repeated them, it would be a libel. In giving a character to a servant there could be no ground of action. Sir Jervis Clif ton was found liable in an action, because he had written a letter respecting a servant, after he had given the character. There was no vindication on record, because the manner and occasion was the vindication. If this action were maintained, it would be the ruin of the British public as well as of the privileges of the bar. Mr. Littledale.-The words arise from the fair discussion of the question. If they had been used on a question of trespass, the case would be different. The action was on a note; the note was fraudulent; it was wicked and fraudulent in an attorney to act so: Mr. Hodgson was that fraudulent and wicked attorney. The words were not distinct and independent. I admit that Mr. Scarlett would be liable if he had spoken the words in the street, or caused them to be published in a newspaper. That what would other, wise be libellous might be said in giving the character of a servant was proved in the case of Weatherstone v. Hawkins. Mr. Raine, (in reply.) The words are false. The comment was unmerited. That they were malicious, I may say, appears on the face of the expressions. I have been twitted twice; one sneer would be enough for not citing a case. I distinctly admitted that I knew no case. The question is, whether there are no bounds, and Counsel may go any length. If there are, to call my client fraudulent and wicked was going beyond the bounds and limits which must be fixed. Mr. Baron Wood was not for giving sanction to this action, of a first impression, brought for the first time, because it would be most mischievous, not merely to the bar, but to the public. The words might overstep the bounds of propriety, and be too severe, but they were not to be corrected by such an action. If they had been said elsewhere, if they had been published, they could be punished. In the privileges of Parliament it was the same. The principle was this-whatever is said in judicial or legal proceedings is not actionable. If published, it is. Lord Abingdon was found liable in the King's Bench on this principle, and was imprisoned. He refused, on the same principle, to maintain an action at Northampton, brought by a clergyman against a parishioner, for letters written to the bishop of the diocese (Peterborough), because he would not make courts of law ancillary to ecclesiastical courts, the parishioner having a right to make such representations to the bishop. It had been said, some limits must be set. His objection to this action was the difficulty of fixing limits. During one assize, they could do nothing but try actions brought for words used by counsel at the former assize. The words might be too severe; I cannot say any thing of that.— Plaintiff nonsuited. reign, carried away, in a certain vessel called a schooner, from Calabar, in Africa, twenty persons, to be dealt with as slaves, contrary to the 51st of the King.-There were eight other counts in the indictment. The Attorney-general opened the case to the jury. James Evans deposed, that he shipped as seaman on board the James, at Liverpool, in December 1814; J. Porter was at that time captain: she was a ship of from 4 to 500 tons; they left Liverpool in December; they then had a schooner on deck; the ship's company consisted of thirty-six ; the prisoner was chief mate; they were bound for Africa, and their cargo consisted of salt, iron, guns, powder, cloth, and rum; they went to Cork, thence to Madeira, and from thence to the coast of Africa. They came finally to Calabar, where the captain died, and the prisoner succeeded him. They left Cork in January, and arrived at Calabar in August. The James went up Calabar river 80 or 90 miles: there was a river called the Qua which branched from it. Previous to their arrival at Calabar, witness saw irons which answered the purpose of handcuffs on board the ship: he saw five pair put on board a Portuguese schooner. The prisoner told him there was a cargo of slaves for him to carry from Duke Ephraim. The schooner was put on board when they commenced their voyage; it was for the purpose of collecting ivory and black wood : but at Calabar she was altered by the prisoner's direction, by knocking the ship's fore bulk-head in, and thereby making a bulk-head nine men, black slaves; they were to the schooner, in order to make a partition, and thereby divide the male from the female slaves. The ivory and wood could be better stowed without the partition. The witness was on shore the morning before he went for the slaves, but returned in the afternoon, and the prisoner told him the schooner which was to take the slaves was ready. Witness was ordered to bed at seven o'clock, and about ten he was called up by James Lenton, who was steward, and who said the canoe with the slaves was coming; he got up, and it proved to be a canoe of yams; she went alongside of the schooner which was lying alongside the ship; the yams were put into the schooner for the use of the slaves. Witness was called down stairs, and went in the Captain's cabin, leaving Renton to look out for the canoe of slaves. The prisoner said, "There is a cargo of slaves -call at the Qua river, at which place you will get ten more." In about ten minutes after he went down into the cabin, another canoe came with slaves. The prisoner had told him to make as good a bargain as he could for the slaves, as it would be for the good of himself and the owners. Witness was to take them to Camarones, two or three hundred miles down the coast from Calabar, by the prisoner's orders. He said, "Whatever you do, keep in shore; for if a man of war's boat, or a man of war, falls in with you, they will take you, and condemn the ship likewise." Witness was to take them to Camarones, and sell them to King Aqua. Thejected slave back, also the articles canoe contained twelve women and they got for the slaves, and wit ness |